Exhibit 10.29
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT (the "Agreement"), is entered into on
August 26, 2005 by and between Delta Mutual, Inc., a corporation organized under
the laws of the State of Delaware, having its principal office located at 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("DELTA"); and Xxxx Xxxxxxxx
Xxxxxxxxx Xxxxx, an United States citizen individual, of legal age, married
under prenuptial agreement, and resident of Caguas, Puerto Rico with the postal
address of XX Xxx 0, Xxxx Xxx, Xxxxxx Xxxx 00000 ("Consultant").
WHEREAS, DELTA and Consultant have agreed on the scope of services Consultant
shall render to DELTA, and the compensation that DELTA shall pay to Consultant
for such services (including the issuance shares of restricted common stock of
Delta Mutual, Inc.) and both parties desire to set forth in this Agreement all
the terms and provisions that shall govern their business relationship.
NOW, THEREFORE, in consideration of the mutual promises made by the parties to
each other, it is agreed as follows:
1. Appointment. DELTA hereby appoints Consultant to serve as an independent
Consultant to DELTA for the "Consulting Services" described below as long as
this Agreement is in full force and effect, and Consultant hereby accepts such
appointment.
2. Scope of Services. DELTA and Consultant agree that Consultant has been
retained to advise and assist DELTA in developing its construction, and
construction materials business activities, as requested by DELTA, from time to
time, during the Term of this Agreement ("Consulting Services").
3. Compensation. In consideration for Consultant's agreement to execute and
deliver this Agreement with DELTA, DELTA agrees to compensate Consultant as
outlined in Exhibit A, which is attached hereto and incorporated herein (the
"Payment Schedule").
4. Term and Termination. This Agreement shall begin on the date hereof and will
continue in effect for a period of four (4) years (the "Term"). Either party may
terminate this Agreement upon thirty (30) days prior written notice. However, in
the event that DELTA terminates this Agreement before the end of the Term, DELTA
agrees and binds to pay Consultant all the unpaid Monthly Payments, Daily
Payments and Quarterly Cash Commissions (as such terms are defined in the
attached Exhibit A) for the remaining months of the Term. Notwithstanding the
foregoing provisions of this Section 4, if Consultant dies during the Term of
this Agreement, and his death is the result of being placed in xxxxx way while
performing the Consulting Services, as requested by DELTA, then this Agreement
shall terminate as of the date of Consultant's death and DELTA shall pay to
Consultant's designated beneficiary, the Monthly Payments (as defined in Exhibit
A) plus any unreimbursed Business Expenses (as defined in Exhibit A) due to
Consultant for the remaining months of the Term, and shall have no further
liability to Consultant under this Agreement. Furthermore, DELTA acknowledges
and agrees that the Consultant shall become the legal owner of all the title,
rights and interests of the DELTA restricted common stock as of the date of
delivery of such stock to the Consultant without the obligation to return such
stocks to DELTA, regardless of the fact that this Agreement be terminated by
DELTA before the end of the Term. Upon termination of this Agreement, Consultant
shall return all records, notes, memoranda, documentation, samples and equipment
of any nature that are in Consultant's control and are property of DELTA, its
subsidiaries, or relate to DELTA's or its subsidiaries' business activities.
5. Independent Contractor Status. Consultant agrees that he is an independent
contractor and is not an employee of DELTA and Consultant will not hold himself
out as such or as an agent or employee. Consultant has no authority or
responsibility to enter into any contracts on behalf of DELTA.
6. Confidential Information/Trade Secrets. During the course of the performance
of the Consulting Services, Consultant may have access to, have disclosed to
him, or otherwise obtain information which DELTA identifies in writing or
through labeling as being of a confidential and/or a proprietary nature to it
(the "Confidential Information"). Consultant shall use such Confidential
Information solely in performance of his obligations under this Agreement and
shall not disclose or divulge it to, or use for the benefit of, any third
parties without DELTA's written consent. Information shall not be deemed as
confidential if such information is: i) already known to Consultant free of any
restrictions at the time it is obtained; ii) subsequently learned from an
independent third party free of any restriction; or iii) available publicly.
7. Publicity. Consultant will not represent his business relationship with DELTA
or this Agreement to any persons or entities, publicly or privately in any term
or to any extent, except as required to perform the Consulting Services. Any
press release or the public disclosure of this Agreement or of the business
relationship between Consultant and DELTA must be approved in advance thereof by
both Consultant and DELTA in writing, except as required by law or applicable
regulation. Neither party shall use the other's name, logo, trademarks, or
service marks in any advertising, publicity releases, or in any other materials
without that party's prior written approval.
8. Best Efforts. DELTA understands that Consultant shall utilize his best
efforts in providing the Consulting Services set forth in Section 2. DELTA fully
understands that Consultant does not and cannot promise that any specific result
will be achieved through engagement of Consultant. Consultant warrants and
represents that he will never attempt to improperly influence any governmental
or corporate official or entity or otherwise seek to accomplish any improper
goal on behalf of DELTA.
9. Governing Law. This Agreement shall be governed by the laws of the State of
Delaware.
10. Counterpart Execution. This Agreement may be executed in one or more
counterparts each of which when taken together shall constitute one agreement.
Delivery of an executed counterpart of a signature page of this Agreement by
facsimile or other electronic transmission shall be effective as delivery of a
manually executed original counterpart of this Agreement.
11. Severability. If any provision of this Agreement or the application thereof
shall, for any reason and to any extent, be invalid or unenforceable, neither
the remainder of this Agreement nor the application of the provision to other
persons, entities or circumstances shall be affected thereby, but instead shall
be enforced to the maximum extent permitted by law.
12. Arbitration. (a) Any controversy or claim arising out of or relating to this
Agreement, any document or instrument provided pursuant hereto, or the breach
thereof, whether common law or statutory, if brought by DELTA against Consultant
shall be settled exclusively by arbitration in San Xxxx, Puerto Rico, using the
American Arbitration Association ("AAA"). Any controversy or claim arising out
of this Agreement brought by Consultant against DELTA shall be settled
exclusively by arbitration in Philadelphia, Pennsylvania, using the AAA. The
arbitration shall be heard before one arbitrator mutually agreed by the parties.
If the parties cannot agree on the appointment of an arbitrator within ten (10)
days after a party's receipt of a demand for arbitration, the arbitrator shall
be appointed by the AAA in accordance with the Arbitration Rules, in which case
the potential arbitrators identified on the list provided by the AAA to the
parties in accordance with such Arbitration Rules shall be, to the extent
available, attorneys experienced with commercial transactions in the
construction industry.
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(b)The arbitrator shall apply the law of the Commonwealth of Puerto Rico or the
Commonwealth of Pennsylvania, as the case may be, applicable to contracts made
and to be performed entirely in such jurisdiction (without giving effect to the
conflicts of laws provisions thereof) in determining the rights, obligations and
liabilities of the parties. The arbitrators shall not have the power to alter,
modify, amend, add to or subtract from any term or provision of this Agreement,
nor to grant injunctive relief, including interim relief, of any nature. In all
other respects, the commercial rules of the AAA shall govern the arbitration.
Judgment on the award of the arbitrator may be entered by any court having
jurisdiction to do so, and each party hereto hereby irrevocably consents and
submits to the personal jurisdiction of the federal and state courts of the
Commonwealth of Puerto Rico, or the Commonwealth of Pennsylvania, as the case
may be, for that purpose.
(c) The failure or refusal of any party to submit to arbitration shall
constitute a breach of this Agreement. Judicial action may be commenced in order
to compel arbitration. If such action is commenced and if arbitration is in fact
compelled, the party that shall have resisted arbitration shall be required to
pay to the other parties all costs and expenses, including, without limitation,
reasonable attorneys' fees, that they incur in compelling arbitration. The
prevailing party in arbitration shall be entitled to its reasonable
attorneys'fees and costs.
13. Contents of Agreement; Amendments. This Agreement supersedes all prior
agreements between the parties and sets forth the entire understanding between
the parties, with respect to the subject matter herein. No amendments or
modifications to this Agreement shall be binding upon each party unless made in
writing and signed by all the parties.
14. Corporate Authority. DELTA has all requisite corporate power and authority
to enter into this Agreement and to carry out the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by DELTA have
been duly and validly authorized and approved by all necessary corporate action.
This Agreement constitutes the legal and binding obligation of DELTA,
enforceable against it in accordance with its terms.
15. Consultant's Obligation. This Agreement constitutes the legal and binding
obligation of Consultant, enforceable against him in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date and year first written above.
Xxxx Xxxxxxxx Xxxxxxxxx Xxxxx Delta Mutual, Inc.
(Consultant) (DELTA)
By: /s/ By: /s/
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Xxxx Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxxx X. Xxxxxx
Vice President
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EXHIBIT A
to Consulting Services Agreement dated August 26, 2005
Payment Schedule
Delta Mutual, Inc. ("DELTA") will compensate Xxxx Xxxxxxxx Xxxxxxxxx Pagan
("Consultant") with a combination of cash and shares of restricted common stock
of Delta Mutual, Inc., all as set forth in this Exhibit A, predicated on the
performance of the Consulting Services (as defined in the Consulting Services
Agreement).
I. Cash Payments
A. A sign payment of six thousand dollars ($6,000.00) in United States currency
upon the execution of the Agreement.
B. Forty seven (47) consecutive monthly payments of six thousand dollars
($6,000.00) in United States currency after the execution of this Agreement, for
a maximum of seven (7) days per month, provided the Consultant agrees to perform
the Consultant Services in the days requested by DELTA (the "Monthly Payments").
Consultant will submit on the first day of the each month a monthly invoice for
services provided, in a form reasonably satisfactory to DELTA. The first Monthly
Payment shall cover the Consulting Services rendered during the month of
September of 2005. Each Monthly Payment shall be payable to the Consultant
within the first five (5) days of the month upon submission of the monthly
invoice for the Consulting Services rendered in the prior month. In the event
that DELTA requests Consultant to render Consulting Services in excess of the
seven (7) days per month, and Consultant agrees to perform said services (the
"Additional Consulting Services"), DELTA agrees to pay Consultant an additional
daily payment of one thousand dollars ($1,000.00) in United States currency per
day of Consulting Services (the "Daily Payments"). Daily Payments shall be
payable to the Consultant within the first five days of the month upon
submission of the monthly invoice for the Additional Consulting Services
rendered in the prior month.
C. Reimbursement of all travel, lodging, meals and travel-related expenses
during the business travels requested by DELTA to Consultant (the "Business
Expenses") in accordance with the existing DELTA policies and procedures.
D. Payment of a quarterly cash sales commission that will commence the first
quarter after initial sales by Delta Technologies, Inc. ("DTI"), which is a
wholly-owned subsidiary of DELTA, which payment begins and continues until the
Consultant receives total cash commissions of $1,700,000.00 ("Total Commission
Amount"). After DELTA has paid Consultant the Total Commission Amount, its
obligation to make quarterly sales commission payments will terminate. Until the
Total Commission Amount is paid in full, DELTA will pay Consultant a quarterly
cash commission that equals five percent (5.00%) of DTI's gross sales per
quarter (the "Quarterly Cash Commission") on or before the tenth (10th) business
day after the end of each quarter.
II. Delta Mutual, Inc. Restricted Common Stock
A. The number of shares of restricted common stock of Delta Mutual, Inc. with a
dollar equivalent of $250,000.00 in United States currency based on the closing
price of DELTA common stock (DLTM.OB) on the date of execution of the Agreement
and to be delivered to Consultant within five (5) business days thereof. The
restriction on the sale of the restricted common stock of Delta Mutual, Inc.
will be governed by Rule 144 of the Securities Exchange Act of 1934, as amended.
B. The number of shares of restricted common stock of Delta Mutual, Inc. with a
dollar equivalent of $250,000.00 in United States currency based on the closing
price of DELTA common stock (DLTM.OB) on the date of January 17, 2006 and to be
delivered to Consultant within five (5) business days thereof. The restriction
on the sale of the restricted common stock of Delta Mutual, Inc. will be
governed by Rule 144 of the Securities Exchange Act of 1934, as amended.
C. The number of shares of restricted common stock of Delta Mutual, Inc. with a
dollar equivalent of $16,000.00 in United States currency based on the closing
price of DELTA common stock (DLTM.OB) on the last business day of each quarter
commencing with the quarter ending on March 31, 2006 and continuing for a total
of sixteen (16) quarters and deliverable to the Consultant within five (5)
business days after the end of each quarter. The restriction on the sale of the
restricted common stock of Delta Mutual, Inc. will be governed by Rule 144 of
the Securities Exchange Act of 1934, as amended.
[Page 2 of 2 of Exhibit A to Consulting Services Agreement dated August 26,
2005]
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